Imágenes de páginas
PDF
EPUB

App. Div.]

Fourth Department, March, 1910.

In this case it appears not only that the defendants are abutting owners upon the highway in question, but that they own the fee respectively to the center thereof, so that as against each of the defendants the petitioner is seeking to acquire his private property for its private use and benefit. It would hardly seem to be necessary to cite authorities in support of the proposition that private property may not be taken for private use. Many such, however, can be found, among others: Taylor v. Porter (4 Hill, 140); Matter of Mayor, etc. (135 N. Y. 253); Waterloo Woolen Mfg. Co. v. Shanahan (128 id. 345); Matter of Split Rock Cable Road Co. (Id. 408).

It is unnecessary to consider in detail the provisions of section 20 of the Railroad Law (Laws of 1890, chap. 565) because, in so far as it assumes to authorize the taking of private property for private use, it is unconstitutional and void.

This application does not fall under the rule that those having control of or authority over public streets or highways may grant certain privileges to abutting owners although the exercise of the privileges so granted may to some extent interfere with the convenience of the traveling public. Such privileges are granted upon the theory that all abutting owners similarly situated may alike enjoy them. We think it has never been held that a stranger can be permitted to invade such street or highway solely for his private purpose.

In the case of Hatfield v. Straus (189 N. Y. 208) it was held : "The board of estimate and apportionment of the city of New York has no authority to grant to the proprietors of a department store a permit to lay down private railroad tracks in front of their premises and operate express cars thereon for the conveyance of goods to their store from the street railroads."

The suggestion of counsel for petitioner that it is significant that, although section 20 of the Railroad Law was enacted more than twenty years ago, its constitutionality has never been questioned, is not forceful in support of the granting of the motion, because it is quite possible that this is the first time it has ever been urged before a court that private property can be acquired in opposition to the will of the owner thereof, whether it consists of an easement or the fee of a public highway, for the private use and purpose of a person

Third Department, March, 1910.

[Vol. 137. or corporation seeking to obtain the same and for a use and purpose which the public or no one other than the person or corporation attempting to acquire it has any interest in.

The application should be denied, with ten dollars costs and disbursements, and the petition dismissed.

All concurred; WILLIAMS and KRUSE, JJ., in result only.

Application denied and petition dismissed, with ten dollars costs and disbursements.

WILLIAM T. CORNELL, Appellant,

Respondent.

v. CHARLES P. TAYLOR

Third Department, March 9, 1910.

Accord and satisfaction — acceptance of part payment-honest dispute -moral obligation

allegations.

question for jury — pleading

-

inconsistent

The payment of part of an honestly disputed debt when accepted is an accord and satisfaction.

Where the legal obligation is acknowledged a dispute as to the moral obligation to pay cannot be made the basis for an accord and satisfaction. Where in an action for services rendered it appears that the agreed value of the same was one hundred and forty dollars; that defendant after giving the plaintiff an order on an insurance company to secure the sum withdrew all the money owing to him by the company before the order was presented; that later he sent plaintiff a check for seventy-five dollars in full for the services, which plaintiff cashed after notifying defendant that he did not accept it as full payment, and it further appears that defendant while claiming to have been told the services were worth only seventy-five dollars, later admitted that he was mistaken and promised to pay the balance, it is error for the court to nonsuit at the close of plaintiff's case, for it is for the jury to say whether there was an honest dispute as to the claim.

Allegations that the defendant fraudulently misrepresented that he had a policy due from the insurance company and that he later withdrew the money therefor are inconsistent, but eliminating these, plaintiff could recover on an allegation of the fraudulent conversion by defendant of the funds held by the insurance company after he had assigned the same.

HOUGHTON, J., dissented.

APPEAL by the plaintiff, William T. Cornell, from a judgment of the Supreme Court in favor of the defendant, entered in the office

App. Div.]

Third Department, March, 1910.

of the clerk of the county of Broome on the 14th day of April, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the Broome Trial Term, and also from an order entered in said clerk's office on the 6th day of May, 1909, denying the plaintiff's motion for a new trial made upon the minutes.

In May, 1907, plaintiff furnished a casket to the defendant and performed services for him in connection with the death of his wife at the agreed sum of one hundred and forty dollars. To secure this sum defendant gave to the plaintiff an order upon the Prudential Life Insurance Company, in which company the life of his wife was insured for his benefit. Before the order reached the main office of the company the defendant himself had drawn the full amount of the said life insurance. Thereafter the defendant sent to the plaintiff a money order for seventy-five dollars, together with a letter, which was interpreted by the plaintiff to state that the moneys were sent in full payment of the plaintiff's claim. It was stated in the letter that the defendant had priced caskets in the city of Rome and found that from sixty dollars to seventy-five dollars was a fair price for the casket furnished by the defendant and the work done. The plaintiff's attorney wrote to the defendant that the order would not be accepted as payment in full, and that it would be in the hands of the plaintiff subject to his order. The order was, however, cashed by the plaintiff about the first of August. The learned trial judge has held as matter of law that this constituted an accord and satisfaction of the plaintiff's claim.

Charles R. Stewart, for the appellant.

E. O. Worden, for the respondent.

SMITH, P. J.:

In Simons v. American Legion of Honor (178 N. Y. 265) the law seems to be declared by the Court of Appeals as follows: "Now it is the settled law of this State that if a debt or claim be disputed or contingent at the time of payment, the payment when accepted of a part of the whole debt is a good satisfaction and it matters not that there was no solid foundation for the dispute. APP. DIV.-VOL. CXXXVII.

32

Third Department, March, 1910.

[Vol. 137. The test in such cases is, Was the dispute honest or fraudulent? If honest, it affords the basis for an accord between the parties, which the law favors, the execution of which is the satisfaction." Can it be held in this case that there was an honest dispute between the parties?

It will be noticed that there was no claim of fraudulent representation; simply a claim that he had agreed to give $140 for what in fact was worth only $75. Without fraud or misrepresentation on the part of the defendant that would not constitute a dispute of the validity of the plaintiff's claim. A dispute as to the moral obligation to pay cannot be made a basis for an accord and satisfaction. But more than that, thereafter the plaintiff went to Rome and was told by the defendant that he was informed by a certain undertaker there that the claim was exorbitant. The plaintiff went with the defendant to the undertaker's and there in the presence of the plaintiff the undertaker denied that he had told the defendant anything of the kind. After this conversation the defendant admitted to the plaintiff that he had made a mistake and promised to pay the balance of the bill before spring. These facts would seem to indicate that at least there was a question for the jury as to whether there was an honest dispute which could be made the basis of an accord and satisfaction, for without such an honest dispute an agreement to take a lesser amount in payment of a liquidated claim is without consideration and void. (Fuller v. Kemp, 138 N. Y. 237.)

But the defendant contends that the action is brought for fraudulently misrepresenting that the defendant had the policy of insurance in the Prudential Life Insurance Company and that the plaintiff has failed to prove any such cause of action. It is difficult to see why the plaintiff should have alleged such misrepresentation and thereafter have alleged that the defendant drew the moneys from the Prudential Life Insurance Company, which would seem to show conclusively that there could not have been any fraudulent misrepresentation of the fact. Eliminating these inconsistent declarations, there remains an allegation of a fraudulent conversion of funds held by the Prudential Life Insurance Company for the defendant which he had assigned to the plaintiff, and such a cause of action would seem to be supported by the proof.

App. Div.]

Third Department, March, 1910.

The judgment and order should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred, except HOUGHTON, J., dissenting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

MAJOR GOODRICH, Plaintiff, v. THE BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT NO. 3 OF THE TOWNS OF GREENWICH AND EASTON, Respondent, Impleaded with LEMUEL RICHARDS and Others, Defendants, and KENDRICK AND BROWN COMPANY, Appellant.

Third Department, March 9, 1910.

Lien-mechanic's lien-modification of judgment on appeal — participation of members of school board in sub-contracts - bills and notes draft on special fund — validity of payment as to subsequent lienors school law-costs.

Where in a suit to foreclose a mechanic's lien the decree inadvertently fails to grant a deficiency judgment against the principal contractor, it will be modified on appeal so as to supply the omission. Where a board of education contracted for the construction of a school building, the fact that one of the sub-contractors subsequently became a member of the board does not deprive him of full rights to enforce his contract, nor does the fact that a member of the board was interested in a corporation, one of the subcontractors, invalidate the lien of that company or make illegal a payment for work actually done and accepted.

Where the principal contractor made a note, bearing the words "Charge to bond account," and the president of the board of education wrote on the back that the note was authorized and to be deducted from the next estimate, a payment of the note by the board in good faith is valid as against sub-contractors filing liens subsequent to the payment. This is so, although the note, which was made for the purpose of raising money to pay the wages of employees upon the building, was not paid out of the next estimate. Section 25 of article 4, title 8, of the Consolidated School Law does not invalidate a payment actually made on a valid debt, though not in the form prescribed. The board of education should be allowed payments on valid liens made within three months after they were filed, as for money paid on the contract. Costs should not be charged against the members of the board personally where they proceeded lawfully, did not invite the litigation, and claims of the contractors for extra work were reduced over one half.

« AnteriorContinuar »